People v. McClendon , 21 Mich. App. 142 ( 1970 )

21 Mich. App. 142 (1970) 175 N.W.2d 340

PEOPLE
v.
McCLENDON

Docket No. 6,436.

Michigan Court of Appeals.

Decided January 27, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

Franklin & Harris, for defendant.

Before: DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

PER CURIAM.

Defendant was found guilty by a jury of robbery armed and was sentenced to a term of 5 to 15 years in prison. CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797). On appeal defendant is represented by the same counsel who represented him at his trial.

Defendant claims that his constitutional rights were denied when he was placed in a police lineup without his counsel present, when the police showed his photograph along with others to the complaining witness for identification purposes, and when he was not given sufficient time to present his defense. Finally, defendant alleges there was not sufficient evidence to sustain the guilty verdict.

These allegations of error were not made to the trial court. They arise in this case for the first time before this appellate court.

The record establishes that there was an attorney present at the lineup. It does not establish whether or not he represented the defendant.

In People v. Childers (1969), 20 Mich. App. 639, this Court stated that defense counsel who waited until the close of the prosecution's proofs to object to the admission of identification evidence which they should have known was subject to constitutional attack raised the issue in an untimely manner. A motion to suppress in advance of trial is the proper procedure so that the state may avoid new trials in such cases, and may also have orderly trials without unexpected but avoidable delays.

Thus, in the instant case where the objection to the defendant's not having counsel present at the police lineup is made for the first time on appeal, it is made too late.

Defendant next questions the use of photographs to aid in identification. The United States Supreme Court has indicated that photographic identification is allowed. See Simmons v. United States (1968), 390 U.S. 377 (88 S. Ct. 967, 19 L. Ed. 2d 1247). An examination of the record discloses that impropriety on the part of police officers in the use of photographs was neither alleged nor established; therefore, we find no reversible error was committed by the admission of the testimony of the photographic identification by the complaining witness of the defendant.

Additionally, error, if any, in the conduct of the police lineup or the use of photographs for identification purposes was clearly harmless. The defense was alibi, not mistaken identity.

The record clearly demonstrates that the allegation that defendant was not given sufficient time to present his defense is without merit. The granting of a continuance rests in the discretion of the trial court, GCR 1963, 503.2. In the instant case the trial court had previously adjourned the trial on one occasion in order to allow the defendant to secure his witnesses. We note also that defense counsel did not seek service of compulsory process to secure the presence of his witness. Under the circumstances a refusal to grant a continuance was not an abuse of discretion. People v. Collier (1969) 16 Mich. App. 695.

Finally, there was sufficient evidence which, if believed, would support the jury's verdict of guilty.

"This Court will not disturb the verdict unless evidence fails to support the finding of fact by the jury. People v. Floyd (1966), 2 Mich. App. 168. We find that the jury's verdict in the case before us is amply supported by the evidence." People v. Arither Thomas (1967), 7 Mich. App. 103, 104.

Affirmed.